Posts tagged with "violence"

On The Authority of Schools to Expel Students

It’s that time of year: Summer vacation is over. Labor Day has come and gone. Children now find themselves back into the daily routine of waking up early, getting ready for school, and attending classes. Each year, Boards of Education provide its students with booklets covering their code of conduct, and of notable interest is understanding how one’s conduct off school grounds can adversely impact in-school opportunities. That is, what authority does a school district have to expel students for out-of-school behavior?

Expulsion of Students in Connecticut Schools

Connecticut’s statutory scheme governing children (both generally and in the context of education) is particularly comprehensive, and an important section in the context of school discipline concerns expulsion. The General Statutes require expulsion for conduct not committed during school hours or on school grounds in two situations:

  1. The student carried (without a permit) a statutorily-enumerated weapon, or used one to commit a crime. Weapons covered include firearms, deadly weapons, dangerous instruments, and martial arts weapons.
  2. The student sold or distributed illegal drugs or attempted to do so.

Connecticut General Statutes § 10-223d(2).

State law permits expulsion of students if the out-of-school conduct violates school policy and is seriously disruptive of the educational process. This standard was discussed in the Connecticut Supreme Court’s decision in Packer v. Board of Education of the Town of Thompson, 256 Conn. 89 (1998), which involved a student in possession of marijuana and drug paraphernalia in his car while not at school. When a school board needs to determine whether this threshold has been met, it considers numerous factors:

  1. Whether the incident occurred within close proximity of a school
  2. Whether other students from the school were involved or whether there was any gang involvement
  3. Whether the conduct involved violence, threats of violence or the unlawful use of a weapon, … and whether any injuries occurred
  4. Whether the conduct involved the use of alcohol

Connecticut General Statutes § 10-223d(1).

Written by Lindsay E. Raber, Esq.

Depending on the nature of the conduct, the punishment imposed can be severe and particularly detrimental to a child’s educational and recreational opportunities. If your child is facing suspension or expulsion for conduct committed on or off of school grounds, it is imperative that you seek counsel from an experienced education law practitioner. If you have any questions regarding education legal matters, please do not hesitate to contact Attorney Joseph C. Maya at Maya Murphy, P.C. in Westport, CT by telephone at (203) 221-3100 or via email at

When You Wish Upon a Star You May, Instead, Be Granted a School Suspension!

On March 22, 2012, the United States Court of Appeals for the Second Circuit (whose rulings form a binding precedent for the Federal District Court here in Connecticut) issued its decision in Cuff v. Valley Central School District, Docket No. 10-2282-cv.  The decision stands as mute testimony to what can happen when school administrators react, rather than respond, and judges go after a gnat with a sledgehammer without regard to what else is smashed beneath their blow. 

At issue are the contours of a fifth-grade student’s First Amendment rights, and the regulation of his in-school speech.  The decision and its stated rationale erode further those rights and need to be appreciated and understood by parents of children attending public school here in Connecticut.

Facts of the Case

The student involved (“B.C.”) was a ten year old fifth grader at Berea Elementary School in Montgomery, New York.  On September 12, 2007, B.C.’s science teacher asked her students to fill in a picture of an astronaut and write various things in the body and appendages of the astronaut.  The class was instructed to write a “wish” in the left leg of the astronaut.  The teacher told the class that “you can write, like, anything you want . . . you can involve a missile . . . [y]ou can write about missiles.”  Thereafter, B.C. wrote on the astronaut as his “wish”: “Blow up the school with the teachers in it.”

B.C. told his classmates seated nearby what he was going to write in the picture and the other students laughed in response.  A neighboring female student walked over to look at B.C.’s picture and reportedly also laughed at it.  She then approached the teacher—who perceived the female student to be “very worried”—and told the teacher about the drawing.  The teacher asked B.C. if he meant what he had written, to which B.C. reportedly responded “with a blank and serious face.”  The teacher then sent B.C. to the principal’s office.

The Punishment

B.C. told the principal that he did not mean what he had written.  The principal called the school Superintendent for advice regarding B.C.’s punishment and the Superintendent stated that suspension was appropriate.  Incredibly, at the end of the meeting, the principal asked B.C. to sign a document consisting of the principal’s notes as taken during the meeting.  B.C. signed the document notwithstanding the fact that he could not read the principal’s handwriting (the opinion is silent on whether B.C. signed in crayon).  Later that day, the principal met with B.C. and his parents where B.C. again stated that he did not mean what he had written and that he was only kidding.

Following that meeting, the principal imposed a five-day out-of-school suspension, and a one-day in-school suspension based upon the “wish.”  Upon appeal, the District Board of Education upheld the suspension, and B.C.’s parents filed a federal lawsuit claiming that his suspension violated his First Amendment right to freedom of expression, and constituted an excessive punishment.  The federal District Court granted summary judgment in favor of the school board from which B.C.’s parents appealed to the Court of Appeals.

The Court’s Analysis

The Second Circuit began its discussion with a review of the Tinker, Fraser, Hazelwood trilogy of Supreme Court cases, as informed by a recent decision of its own (Doninger) before restating the operative, objective test governing constitutional protection of B.C.’s “wish”: “whether school officials might reasonably portend disruption from the student expression at issue.” (Parenthetically, it should be noted that Tinker required the reasonable “forecast of substantial disruption of or material interference with school activities”—those qualifiers have meaning). 

The test does not require school administrators to prove that actual disruption occurred or that substantial disruption was inevitable.  The relevant inquiry goes to the reasonableness of the administration’s response, as opposed to the intent of the student.

In upholding the suspension and thereby finding that it was reasonably foreseeable that the astronaut drawing could create a substantial disruption at the school, the Second Circuit relied upon the facts that (a) B.C. had prior disciplinary issues, (b) his prior drawings and writings also “embraced violence,” (c) the drawing was seen by other students in the class, and (d) the reporting female student was perceived as “very worried.”   

The first two factors seem to impermissibly shift the analysis from the “speech” to the “speaker,” where B.C.’s prior disciplinary issues were hardly atypical of a 10 year-old boy.  (Query whether B.C.’s “wish” would have been protected First Amendment expression if it had been drawn by a student other than B.C., i.e., one with an unblemished disciplinary record?). 

The court also deemed irrelevant whether the “wish” was intended as a joke, and the fact that B.C. lacked the capacity to carry out the threat.  Post Columbine, courts have displayed extraordinary deference to school officials where there is any portent of violence contained within student speech or expression.

The Court’s Decision

The court concluded its opinion with an extended syllogism that has to be read to be appreciated.  Suffice it to say that the Court of Appeals begins with B.C.’s “wish” and constructs a chain of reasonably foreseeable consequences ending with a decline in parental confidence in school safety, the need to hire security personnel, and even a decline in enrollment.  As a result, the court held B.C.’s suspension to be constitutional.  This would appear to be a “zero tolerance” case that was decided to B.C.’s detriment solely because nobody wanted to be held retroactively responsible for whatever B.C. might do in the future.

The Dissent

The Second Circuit decision was decided by a three-judge panel, on a 2-1 basis.  One judge wrote a lengthy dissent.  Therein he stated his belief that a jury could conclude that B.C.’s “stab at humor” could barely cause a stir at school, much less a substantial disruption.  Few students saw the drawing and those that did laughed as a result.  Not a single student understood B.C.’s “wish” to be a serious threat.

The law does not have a “litmus test” whereby speech or expression that involves violent content automatically forfeits all First Amendment protection.  The lewd and obscene, the profane, the libelous, and a true threat, are devoid of constitutional protection, whether uttered in school or on the street. 

The Supreme Court, however, has made it clear that school officials have broader authority to sanction student speech that might otherwise be protected if made by an adult in another context.  This is a common sense reflection of the special characteristics inherent in the school environment and society’s interest in teaching students the boundaries of socially appropriate behavior.  None of those pedagogical concerns were present in B.C.’s case.

It was B.C.’s teacher who suggested writing about military hardware.  As the dissenting judge succinctly states, with regard to the reporting female student, “a jury could conclude that she was prim, not petrified.”  B.C.’s drawing, viewed briefly and by only a few, did cause brief and minimal disruption in his classroom; some children laughed and a classmate reported him to his teacher.  This is not the “substantial disruption” that Tinker found sufficient to displace a student’s First Amendment rights.

Potential for a Substantial Disruption

Significantly, the dissenting judge lamented what he saw as the absence of a causal relationship between the speech sought to be suppressed and the harmful effects that justify its suppression.  Stated differently, the pertinent issue is whether school authorities correctly forecast that B.C‘s “wish” had the potential to cause a substantial disruption, or whether, instead, they improperly used it to try to forecast future conduct of B.C., himself.  

While school officials may investigate and detain a student who uses violent or even ambiguous language in order to determine whether he poses a genuine threat to himself or others, there is a huge difference between precaution and protection, on the one hand, and punishment, on the other.

Finally, natural fear of another Columbine should not blindly and blithely insulate the actions of school officials against constitutional scrutiny.  In the words of Justice Alito in another case, “[i]n their various roles, school administrators must distinguish empty boasts from serious threats, rough-housing from bullying, and an active imagination from a dangerous impulse.”  That was clearly not done in B.C.’s case. 

It is one thing for courts to defer to school officials who have thoughtfully applied their background, education, and experience to conclude that a particular form of student speech could result in a substantial disruption at the school.  It is quite another for reviewing judges to reflexively “rubber stamp” the abrogation of student freedom of speech in the name of “political correctness.”

The Takeaway for Parents

We here at Maya Murphy, P.C. published “Advocating on Your Child’s Behalf: A Parent’s Guide to Connecticut School Law” that contained a section devoted to students’ First Amendment rights in the digital age.  That section contained an in-depth discussion of the Doninger case relied upon by the court in B.C.’s case, and concluded with the warning: “the unsettled status of the law affords school administrators wide latitude in deciding when a student communication can be reasonably seen to create a foreseeable risk of academic disruption.” 

Unfortunately, while B.C.’s case may render the law more “settled,” it also leaves parents and students more at risk as a result of a casual utterance or expression at school.  For the time being, it must be assumed that any spoken or written reference to, or depiction of, weaponry, violence, property damage or bodily injury, may form the basis for student discipline.   Students (and their First Amendment rights) will be sacrificed on the altar of “zero tolerance” that sometimes seems also to worship “zero common sense.”

If you have any questions regarding your child’s education, or any education law matter, please contact Joseph Maya at (203) 221-3100 or by email at to schedule a free initial consultation today.

Bullying In Schools: Are We Doing Enough to Protect Children?

The Impact of Bullying in Schools 

On September 22, 2010, Seth Walsh should have been skateboarding or playing baseball, listening to his new favorite song, perhaps, or talking on the phone with friends.  He should have been happy and carefree.  After all, Seth was only thirteen years old, an age when children should be laughing and dreaming of the endless opportunities that lie ahead.  Instead, Seth Walsh was lying beneath a tree in his backyard unconscious, no longer breathing.  He had just hung himself.  After spending the next week on life support, with his mother looking on, Seth ultimately died.

And just days earlier on the other side of the country, Tyler Climenti, an eighteen-year-old student at Rutgers posted what would be his last Facebook message, “Jumping off the gw bridge sorry.” Later that night Tyler took his own life as well- throwing himself into the dark and frigid water of the Hudson River.

In September, 2010, within nineteen days, four teenagers from around the country committed suicide.  William Lucas, from Greensburg Indiana was only fifteen, Asher Brown from Houston Texas was thirteen.  Like Seth, Billy hung himself.  Asher shot himself in the head with one of his step-father’s guns.  The common link?  All four had been relentlessly tormented at school.

Shining new light on what has become a national epidemic, these cases illuminate the devastating and increasingly deadly effects of bullying.  There is some debate over whether bullying is a new phenomenon or whether children are simply reacting differently.  Whatever the case may be, one thing is clear- we must take action to protect the destruction of more innocent lives.

State Action: Anti-Bullying Legislation

The Department of Education recently entered the fray, releasing a “Dear Colleague” letter in which it urged school districts to address bullying within the classroom, providing school administrators with guidance on how to end harassment.

Additionally, within the last couple of years, many states, including New York and Connecticut, have passed anti-bulling legislation.  At what point should a school district be held liable when it fails to prevent bullying?  The answer to that question is not clear-cut.  Indeed, parents face several legal challenges when they pursue a case.

For instance, in 2008, the Superior Court at New Britain held that parents of a Berlin High School student could not maintain a negligence cause of action against the school district, the administrators or the child’s coach.  In Dornfried v. Berlin Board of Education, et al, Robby Dornfried’s parents alleged that while a freshman and sophomore at the high school, and a place-kicker on the varsity football team, their son was subjected to “incessant bullying, harassment, intimidation and was the victim of threats and/or acts of violence” by his teammates.

They further alleged that school administrators, the guidance counselor, even Robby’s coach, knew of the problem, but did nothing to stop the behavior.  Robby eventually sought medical treatment and ultimately transferred to Northwest Catholic High School halfway though his sophomore year.

Governmental Immunity Rule

Analyzing whether the principal of governmental immunity barred suit, the Court recited the general rule that a municipal employee may be liable for the misperformance of ministerial acts, but has qualified immunity in the performance of governmental acts- those performed wholly for the benefit of the public and supervisory or discretionary in nature.

Agreeing with the defendants, the Court found that the supervision of school children, not only during school hours, but at extra-curricular events such as football practice or a football game is a discretionary matter.  It next addressed whether it was appropriate to apply any of the exceptions to the immunity doctrine.  Generally, there are three:

  1. Liability may be imposed for a discretionary act when the alleged conduct involved malice, wantonness or intent to injure.
  2. Liability may be imposed for a discretionary act when a statute provides for a cause of action against a municipality or municipal official for failure to enforce certain laws.
  3. Liability may be imposed when the circumstances make it apparent to the public officer that his or her failure to act would be likely to subject an identifiable person to imminent harm.

Ignoring the first two exceptions, the Court addressed whether Robby was an “identifiable person subject to imminent harm” under the law.  Citing Supreme Court precedent, Judge Trombley, found he was not, explaining the only identifiable class of foreseeable victims the courts have recognized is that of school children attending public schools during school hours.

The Court ultimately held that although participation in school sponsored athletic programs is most likely encouraged, the participation is on a purely voluntary basis and, therefore, governmental immunity barred Robby’s negligence claims.

Negligence in Schools

In an earlier decision, the Superior Court at New Haven reached a different conclusion in a bullying case.  In Esposito v. Town of Bethany, et al, the father of an elementary school student brought suit against the Town of Bethany, the Board of Education and the Bethany Public School District alleging negligence.  The student, Christina, was allegedly teased on a regular basis and at one point another student threw a ball at the back of her head during recess.  Christina sustained severe injuries “leaving her with an acquired brain injury and severe optical dysfunction.”

In response to Connecticut’s anti-bulling legislation, which became effective July, 2002, the Town of Bethany adopted a comprehensive anti-bullying policy.  The Plaintiff’s pointed to that policy arguing that the school failed to follow it and, thus, their acts were ministerial rather than discretionary in nature.  The Court framed the issue as whether, “…a detailed method of behavior was laid down for administrators and teachers for dealing with bullying depriving them of any judgment or discretion, or that, actions were dictated to deal with the problem that involved merely the execution of an established policy.”  Leaving this question unanswered, the Court ultimately erred on the side of caution, allowing the plaintiff an opportunity to present the facts at trial.

Imminent Harm in Bullying Cases

Later in its decision the Court addressed whether the “identifiable person subject to imminent harm” exception would apply if the school’s actions were in fact discretionary.  In doing so, the Court hinted at expanding its view of the doctrine in the context of school bullying.

The Court interpreted prior case law as suggesting that the only identifiable class of foreseeable victims is that of school children attending school during school hours, but went on to suggest, “[b]ut if a clearly identifiable person, child or adult, is exposed to imminent harm then the exception could apply also if that individual is exposed to imminent harm,” continuing, “an individual may be identifiable for purposes of the exception to qualified immunity if the harm occurs within a limited temporal and geographical zone, involving a temporary condition.”

In ruling in Christina’s favor, the court also noted that the appellate courts have relaxed the “identifiable person” portion of the analysis as it pertains to school children stating simply, “they are a foreseeable class to be protected.”  The Court concluded it must assume a similarly protective attitude will be applied in examining the “imminent harm” requirement stating, “bullying is condemned by state statute, children must attend schools, children are not as capable of defending themselves, they are vulnerable in the entire school area where unsupervised conduct prevails, and the bullying concept includes… a particular child subject to these acts.”


Whether a victim of bullying will be successful in bringing a claim against a school district will depend heavily on the facts and circumstances of the case as well as the theory of liability, the state in which the claims are made and the causes of action asserted.   As set forth above, in Connecticut governmental immunity may preclude recovery altogether unless the victim can demonstrate the application of an exception is appropriate.

By: Joseph Maya

If you have any questions regarding bullying in schools, or any education law matter, please contact Attorney Joseph Maya at (203) 221-3100 or by email at to schedule a free initial consultation today.